1990s Were Lean Years in Service of the Wild

Court overturns bad decision on Cedar River

The 1990s in northern Michigan has been a succession of lean years in service of the wild. State government cast aside its constitutional duty to protect the public trust, dismaying citizens and producing irretrievable scars on the land.

There is, however, hopeful evidence that the long shadow of neglect is lifting. Public opposition has prompted Gov. John Engler to intervene and prevent drilling for natural gas in the magnificent Jordan Valley. State Senator George McManus’ plan to weaken the Natural River Act has been thwarted. Highway officials are giving serious attention to alternatives to a new bridge across the Boardman River.

Perhaps no ruling, though, illustrates the trend more clearly than Circuit Court Judge Thomas Power’s decision on November 5 to deny Shanty Creek resort’s plan to needlessly damage the Cedar River in Antrim County. In every way, the 10-mile-long Cedar represents the best that northern Michigan has to offer. It is so cold, so wild, and so productive that it is the only river in the lower peninsula that the Department of Natural Resources thinks is suitable for reintroduction of the grayling, a sport fish.

Shanty Creek, however, views the Cedar as a mere amenity, kind of like the mechanical waterfall at a miniature golf course. It asked the Department of Environmental Quality for one permit to install two intake pipes in the river to withdraw millions of gallons of water to make snow and irrigate fairways. A second permit was requested to hack down trees along the banks so that the river can serve as a water hazard for two golf holes.

The scientific arguments against the project are persuasive. Biologists with the Department of Natural Resources produced ample evidence that withdrawing so much water would harm the fishery. Stripping the banks for greens and fairways would cause needless damage to a natural treasure.

The legal case is even stronger. The 1970 Michigan Environmental Protection Act prohibits action that has the potential to cause "pollution, impairment, or destruction" of state natural resources. The 1974 Inland Lakes and Streams Act prohibits any activity that has the potential to harm a rare resource. Both laws say that if damage is likely the applicant must evaluate the feasible and prudent alternatives.

In Shanty Creek’s case, alternatives were readily available. The resort could drill new water wells, as every other destination resort does in northern Michigan. And there is plenty of room for two golf holes without crossing the river.

The trouble is that under the Engler Administration, the leadership of the Department of Environmental Quality, and the DNR have a disturbing habit of ignoring the law. True to their recent history, the directors of both agencies declared in October that Shanty Creek’s plan had no potential to harm the river and issued the permits.

Friends of the Cedar River, an all-volunteer citizens group, anticipated that decision. They hired environmental attorney Jim Olson and filed a court action asserting that Shanty Creek’s proposal and the DEQ decision were illegal. Judge Power agreed with them on the water diversion. Friends of the Cedar River are now awaiting a date for Judge Power to hear its case against the use of the river as a water hazard.

For its part, Shanty Creek has indicated to Mr. Olson that it has no intention of walking away quietly. They should. Judge Power’s preliminary injunction barring the water diversion is the clearest and most satisfying court decision in the public interest in northern Michigan in recent memory. It upholds the principles of sound stewardship embodied in state environmental law. It is an affirmation of reasoned citizen advocacy. Most important, it is a sharp rebuke of Shanty Creek’s profligate plan, and the state’s strange and disagreeable environmental program.

Certainly, the clash has not ended between those who view Northwest Michigan’s resources as a natural legacy to be revered, and exploiters. The region’s forested valleys are home to all manner of oil drillers, home builders, highway pavers, resort owners, strip mall developers – and their friends in public office – who have less sense about the integrity of wild places than a nest of horse flies.

Most residents know that the great expanses of trees, and the rivers that run through them, are the mortar from which a durable economy and a peerless quality of life are built. At last, the public’s enthusiasm for those ideas is now being expressed in official action.

A version of this article was published in the Traverse City Record-Eagle on November 30, 1997.